House approves another five years of warrantless wiretapping

Reauthorization of the FISA Amendments Act must still be passed by the Senate.

The House of Representatives easily passed legislation on Wednesday to re-authorize the FISA Amendments Act, the 2008 law that allows the federal government to intercept the international communications of Americans with minimal judicial oversight. The vote was 301 to 118.

"I think that the government needs to comply with the Fourth Amendment to the Constitution all the time," said Rep. Zoe Lofgren (D-CA) in a floor speech opposing the bill. "We can be safe while still complying with the Constitution of the United States."

But House Judiciary Committee Chairman Lamar Smith, (R-TX) disagreed. "Foreign terrorists continue to search for new ways to attack America," he said before the vote. "Foreign nations continue to spy on America, to plot cyber attacks, and attempt to steal sensitive information from our military and private-sector industries."

But not all Republicans supported the legislation. One opponent was Rep. Tom McClintonck (R-CA). "We're told, don't worry, the law requires that any irrelevant information collected in this manner be disregarded," McClintock said. "But here's the problem: the enforcement of this provision is itself shrouded in secrecy, making the potential for abuse substantial and any remedy unlikely."

The American Civil Liberties Union also blasted the legislation.

"Yet again, the House has rubberstamped a law so broad and vague that, despite its passage four years ago, we still have little idea how the government is using it,” said Michelle Richardson, ACLU legislative counsel. "It is at the very heart of the Fourth Amendment that Americans and their communications are fiercely protected from government intrusion."

The return of general warrants

The FAA was originally enacted in the heat of the 2008 campaign season. During the primary, then-Sen. Barack Obama (D-IL) declared his opposition to a provision providing retroactive immunity to telecommunications companies that illegally participated in surveillance programs, vowing to filibuster the legislation if it came to the Senate floor. But once he secured the Democratic nomination for president, he switched sides and voted in favor of the bill.

The immunity provision received the most attention in 2008, but as we reported at the time, it wasn't the most troubling part of the bill:

The legislation establishes a new procedure whereby the Attorney General and the Director of National Intelligence can sign off on "authorizations" of surveillance programs "targeting people reasonably believed to be located outside the United States." The government is required to submit a "certification" to the FISA court describing the surveillance plan and the "minimization" procedures that will be used to avoid intercepting too many communications of American citizens. However, the government is not required to "identify the specific facilities, places, premises, or property" at which the eavesdropping will occur. The specific eavesdropping targets will be at the NSA's discretion and unreviewed by a judge.

Crucially, there appears to be no limit to the breadth of "authorizations" the government might issue. So, for example, a single "authorization" might cover the interception of all international traffic passing through AT&T's San Francisco facility, with complex software algorithms deciding which communications are retained for the examination of human analysts. Without a list of specific targets, and without a background in computer programming, a judge is unlikely to be able to evaluate whether such software is properly "targeted" at foreigners.

In a recent blog post, Julian Sanchez, a Cato Institute analyst and former Ars contributor, noted that this kind of broad surveillance power bears an eerie similarity to the "general warrants" that inspired the founding fathers to adopt the Fourth Amendment in the first place. During the colonial era, agents of the crown could obtain legal orders allowing them to enter any residence in search of criminals. These powers were sometimes used for fishing expeditions designed to smoke out "seditious" writers who criticized the government anonymously. To prevent this kind of abuse, the authors of the Fourth Amendment required that search warrants specifically describe "the place to be searched, and the persons or things to be seized."

Today, Sanchez writes, that logic is being stood on its head:

Modern defenders of the FISA Amendments Act argue that sweeping NSA surveillance of our digital "papers" is constitutionally unproblematic precisely because it does not "target" the Americans whose papers are searched: The groups or individuals who are the "targets" of programmatic NSA communications interception must be foreign. One wonders what the Founders would have made of this strange "defense": When the king’s messengers burst into printer Dryden Leach’s home in the dead of night to ransack his personal papers—acting on a secondhand report that John Wilkes had recently been seen in his shop—the fact that Wilkes and not Leach was the ultimate "target" of the search hardly excused it in the eyes of liberty-minded observers on either side of the Atlantic. What was so egregious was precisely that the messengers enjoyed "a discretionary power… to search wherever their suspicions may chance to fall," and not merely a power limited to the person and property of their specific "target."

While the FAA passed easily in the House, the fight is far from over. The bill must still be approved by the Senate, where Sen. Ron Wyden (D-OR) has placed a hold on the bill. Wyden has been pressing for more than a year to get basic information about the surveillance programs authorized by the FAA. Incredibly, the National Security Agency has claimed that it can't even give a ballpark figure for the number of Americans who have been subject to surveillance, because such a disclosure—not the spying itself—would violate the targets' privacy.

A legal challenge to the FAA has been working its way through the courts since it was originally approved in 2008. The government has argued that the plaintiffs, a group that includes journalists and civil rights groups, lack standing to sue because they cannot prove that they have personally been the target of surveillance under the law. The Supreme Court is due to hear arguments on that question on October 29.

But House Judiciary Committee Chairman Lamar Smith, (R-TX) disagreed. "Foreign terrorists continue to search for new ways to attack America," he said before the vote. "Foreign nations continue to spy on America, to plot cyber attacks, and attempt to steal sensitive information from our military and private-sector industries."

One of these things is not like the other. One of these things just does not belong.

Does anyone know if any data from this has ever been used for something other than the purpose of the law (finding foreign enemies of the state)?

Has an American citizen ever been persecuted for some bit of data mined out these international phone calls, that was something other than being a terrorist?

No one knows, since everything is classified. But if the program is ever mis-used against American citizens, it's unlikely to be done in a way that would come out in open court. For example, the contents of overseas communications could be used to unmask whistleblowers and other journalistic sources, gather intelligence on the plans of political opponents, etc. These are the sort of abuses the government engaged in before Watergate, and for all we know they're happening today.

Who is writing the history books here anyway, the one with a monopoly on the use of force, facts, and definitions? Fear certainly makes the Senate elect all the more willing to render unto Caesar even more power, yet again; he just has yet to seize his throne.

Citizens of the United States of America. It is time now that there is a Presidential Election to take back America. Please go out and vote. When you the Congressional and Senate goes back for re-election, please vote. When your state legislature is open for re-election please vote. If you don't vote, you are essentially allowing this Orwellian state to continue to grow.

Does anyone know if any data from this has ever been used for something other than the purpose of the law (finding foreign enemies of the state)?

Has an American citizen ever been persecuted for some bit of data mined out these international phone calls, that was something other than being a terrorist?

snipNever mind, Tim Lee said it much better than I did:No one knows, since everything is classified. But if the program is ever mis-used against American citizens, it's unlikely to be done in a way that would come out in open court. For example, the contents of overseas communications could be used to unmask whistleblowers and other journalistic sources, gather intelligence on the plans of political opponents, etc. These are the sort of abuses the government engaged in before Watergate, and for all we know they're happening today.

Has an American citizen ever been persecuted for some bit of data mined out these international phone calls, that was something other than being a terrorist?

If I said "yes" would you be able to prove otherwise? Therefore, yes. Why incidentally did you qualify the harm in terms of persecution?

A pervasive harm certainly comes from institutions that suck money, undermine rights, and take on a life as some extra-legal bureaucracy.

I propose that anything that cannot be reasonably expected and known not to be corruptible, can be, and will be, assumed to be corrupt. The antidote is transparency, oversight, and institutional structures that maintain a clear and distinct separation of powers.

The government has argued that the plaintiffs, a group that includes journalists and civil rights groups, lack standing to sue because they cannot prove that they have personally been the target of surveillance under the law.

That's amazing. "You can't prove we're spying on you, so what's the problem? There's only a 10% chance we're watching you, and as you know, most people aren't in the 10%. Therefor, no one has anything to worry about."

Scary government.BTW, I'm an Aussie. I wonder what happens when our government gets hold of this idea. We have regulation, not freedom, and nothing like a freedom of speech. Too much like the Brits.

Does anyone know if any data from this has ever been used for something other than the purpose of the law (finding foreign enemies of the state)?

Yes. Senator Wyden - following months of efforts to declassify information - was allowed to disclose that on at least one occasion, a court has found that a citizen's 4th amendment rights were violated by the NSA acting on a FISA warrant. Keep in mind that this is an unknowably small part of the big picture.

antiwraith wrote:

Has an American citizen ever been persecuted for some bit of data mined out these international phone calls, that was something other than being a terrorist?

First, "international phone calls" are a minute part of the actual information collected under FISA. Second, we have no idea about any prosecutions (or persecution) that have occurred as a result of FISA wiretaps. Well, actually, we can be reasonably certain no terrorists have, since all terrorist prosecutions so far have been from FBI "stings" or from failed attempts at terrorism that the intelligence community were unable to detect and prevent. But, if you want more detailed information, feel free to ask the government so you can pretend to be surprised that they won't tell you.

I've been thinking recently how odd it seems that in the 20th century, from horse-and-buggy to landing on the moon, it seemed like we amended the constitution every decade at least a couple of times. Since then we've had this huge revolution sometimes called the "Information Age" and we haven't proposed and passed even one new amendment. Yet we have so much that needs updating!

We need to update the 4th Amendment to include our personal data and communications.

We need to eliminate the Electoral College and directly vote for President. (There is bipartisan support for this amongst my friends.)

We need to overturn "Citizens United."

Have we forgotten that the Constitution was intended to be changed as the country changes? Do we assume that the Constitution was perfected forty years ago, and nothing needs changing now?

Citizens of the United States of America. It is time now that there is a Presidential Election to take back America. Please go out and vote. When you the Congressional and Senate goes back for re-election, please vote. When your state legislature is open for re-election please vote. If you don't vote, you are essentially allowing this Orwellian state to continue to grow.

Stand up and be heard.

The law was passed under, and signed by, Bush, was it not? I highly doubt the warmongering Romney and his calls for a mysterious 2 trillion in "defense" spending has any desire to do remove the law. Unless you mean Ron Paul, then lol.

Fourth Amendment:The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Reminder: The legislature CANNOT create law that contradicts the Constitution. Therefore, warrantless wiretapping remains unconstitutional despite the so-called 'Patriot' Act and related attempts to abridge the Constitutional rights of US citizens.

Thomas Jefferson:"The price of freedom is eternal vigilance."This obviously includes vigilance against acts by the legislature that attempt to abridge and remove citizen constitutional rights.

Benjamin Franklin:"They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety."The US Constitution is the definition of essential liberty in the USA. Those who attempt to abridge or remove those rights are traitors to those essential rights of the nation. It really is that simple. Justice is required in stopping, prosecuting and imprisoning such traitors.

One essential question is why traitors are tolerated in political office in our current era of the USA?

Another question is why We The People are made to feel afraid of pointing out all of the facts above?

I've been thinking recently how odd it seems that in the 20th century, from horse-and-buggy to landing on the moon, it seemed like we amended the constitution every decade at least a couple of times. Since then we've had this huge revolution sometimes called the "Information Age" and we haven't proposed and passed even one new amendment. Yet we have so much that needs updating!

We need to update the 4th Amendment to include our personal data and communications.

We need to eliminate the Electoral College and directly vote for President. (There is bipartisan support for this amongst my friends.)

We need to overturn "Citizens United."

Have we forgotten that the Constitution was intended to be changed as the country changes? Do we assume that the Constitution was perfected forty years ago, and nothing needs changing now?

I'm thinking that it's well past time for a few updates.

Well, I personally recall that during the term of office held by Bush The Elder, there was much ado made about the "urgent" need to amend The Constitution so as to establish the act of burning an American flag as a federal criminal offense. (To his credit, Bush did not support this juvenile effort.) Not terribly inspiring when held in comparison against, oh, I don't know, let's say the 1st, 4th, 5th, 6th, 7th,....& a whole mess o' other amendments.

Your suggestion to vacate Citizens United is, in my opinion, exactly the perfect place to start. I would go so far as to mandate that the campaign & elections process strictly exclude ANY private funding whatsoever, as it is evermore indisputably apparent that elected officials of all stripes are blatantly available to render services for the highest bidder(s) aka contributors.

To draw from Sinclair Lewis who quoted, (rather presciently I think); "When fascism comes to America, it will be carrying a Bible and wrapped in the flag." I don't think he would be the least bit surprised to learn that corporations/"people" are financing this creeping, stealthy, usurpation of institutions & power.

Anyone else disturbed by the innuendo of this bill renewing the "law" 5 years? It's almost like republicans don't want to have to make Romney have to reauthorize this unconstitutional law (if he becomes president) until after the 2016 election. Coincidence? Like fucking Hell it is! This law is a poison on the American people and we aren't going to keep voting for the people that rob us of our rights!

Citizens of the United States of America. It is time now that there is a Presidential Election to take back America. Please go out and vote. When you the Congressional and Senate goes back for re-election, please vote. When your state legislature is open for re-election please vote. If you don't vote, you are essentially allowing this Orwellian state to continue to grow.

Stand up and be heard.

Both sides of the political spectrum supported the extension of the FISA Ammendments Act.

Which means that the number of citizens voting in the elections isn't going to change anything.

To draw from Sinclair Lewis who quoted, (rather presciently I think); "When fascism comes to America, it will be carrying a Bible and wrapped in the flag." I don't think he would be the least bit surprised to learn that corporations/"people" are financing this creeping, stealthy, usurpation of institutions & power.

That quote totally made my day. Still pissed off, but now at least I'm smiling.

Anyone else disturbed by the innuendo of this bill renewing the "law" 5 years? It's almost like republicans don't want to have to make Romney have to reauthorize this unconstitutional law (if he becomes president) until after the 2016 election. Coincidence? Like fucking Hell it is!

You should check out the list of taxes mandated by (and to pay for) Obamacare that start on Jan 1, 2013, which also happens to be the day you start paying a higher tax rate because the Bush tax cuts will expire (unless they're extended again).

Pushing unpopular things to just after elections is not strictly a Republican bailiwick.

Anyone else disturbed by the innuendo of this bill renewing the "law" 5 years? It's almost like republicans don't want to have to make Romney have to reauthorize this unconstitutional law (if he becomes president) until after the 2016 election. Coincidence? Like fucking Hell it is!

You should check out the list of taxes mandated by (and to pay for) Obamacare that start on Jan 1, 2013, which also happens to be the day you start paying a higher tax rate because the Bush tax cuts will expire (unless they're extended again).

Pushing unpopular things to just after elections is not strictly a Republican bailiwick.

At least with "Obamacare," the constitutionality was allowed to be challenged, although the supreme court is completely in the wrong when it said that the government has the ability to take away your right to live. Afterall, it's not actually a huge jump to change the penalty from just a fine to imprisonment or even death. But with the FISA Amendment Act, the court says we don't have the right to challenge the legality of the law, even though that half the reason the court system exists: to determine if the government has the power to do what it does!

I declare the US Government to be a terrorist organization and a threat to democracy, freedom, and our constitution. Now could a foreign government please step forward and save us from these terrorists?

I've written a reply, and deleted it, and tried again, several times. But anything I really want to say, I'm afraid to.

I guess the law is working.

I've done this exact thing so many times of late. Its scary to think that we are afraid to post beliefs/suspicions/opinions/negative facts about our own government b/c it might land the poster on some 'list'....

I've written a reply, and deleted it, and tried again, several times. But anything I really want to say, I'm afraid to.

I guess the law is working.

I've done this exact thing so many times of late. Its scary to think that we are afraid to post beliefs/suspicions/opinions/negative facts about our own government b/c it might land the poster on some 'list'....

Just do it and get it over with. Once you are on the list, it won't matter anymore, right? Besides, after that post, you are already on the list.

Timothy B. Lee / Timothy covers tech policy for Ars, with a particular focus on patent and copyright law, privacy, free speech, and open government. His writing has appeared in Slate, Reason, Wired, and the New York Times.